Nursing homes have seen a wave of complaints alleging negligence and wrongful death as a result of purportedly failing to protect residents from contracting the COVID-19 virus. As of March 23, 2021, over 9,500 complaints related to COVID-19 have already been filed in US Courts, according to the daily tracker kept by the law firm of Hunton Andrews Kurth, with New York, California, and Florida having the most complaints filed. 246 of the complaints filed were related to healthcare (18 malpractice, 166 wrongful death, 10 right to visit nursing home patients, and 52 other healthcare related).

Examples of wrongful death cases filed against long-term care providers in March, 2021 include the following:

      • Defendant neglected the care needs of plaintiff’s mother, causing her to develop a severe pressure ulcer. After the state mandated shutdowns due to Covid-19, the facility’s wound care specialist and other doctors did not visit her. Her condition deteriorated to the point she was unable to recover from her injuries and passed away.
      • Decedent of the plaintiff estate contracted a fatal case of Covid-19 during her stay in the defendant assisted living facility. She died in June 2020. State health officials in May 2020 conducted an investigation into the facility and found that it did not enforce mandatory-protective-mask rules residents until after the first case of Covid-19 was confirmed in mid-April. The state investigation also found shortcomings in staff training on virus-protections measures.
      • A non-profit elder care guardianship organization was granted temporary guardianship for a resident and transferred him to a nursing facility. The suit alleges that the assigned guardians breached their guardianship duties by not performing any personal or virtual visits with the resident during one of the months he was at the nursing facility and after he was taken to the hospital due to suspected Covid-19. Defendants did not communicate with the resident or plaintiff regarding his end-of-life preferences yet consented to his transfer to hospice, the change of his code status to “do not resuscitate” and the withdrawal of all life-sustaining treatment. Defendants also failed to inform plaintiff of resident’s death, made “self-serving false statements about resident” on a public website, and authorized the hospital to disclose protected health information after their guardianship authority over him terminated.
      • Defendant failed to monitor changes in decedent’s condition and failed to prevent decedent from contracting covid-19.
      • Defendant did not take measures to protect residents, such as decedent, from contracting Covid-19 from staff or other residents. Decedent contracted the virus and died.

The majority of states have some measure of COVID liability protection, or have pending legislation aimed to protect a businesses or healthcare facilities from liability related to someone contracting COVID-19, unless the provider or facility failed to act or acted with willful misconduct or gross negligence. Gross negligence typically requires demonstrating deliberate or reckless disregard for a resident’s health and safety, which is a higher standard than simply showing the facility did not follow the common standard of care.

The chronology of actions taken by facilities to prevent or minimize the spread of COVID-19 are crucial in establishing or defending willful misconduct or gross negligence in COVID related wrongful death cases. Proactive Medical Review & Consulting’s Certified Legal Nurse Consultants are experts in long-term care and are uniquely positioned to assist legal counsel in understanding the complexities of COVID-19 and examining all four legal elements (duty, breach of duty, damages and causation) in medical malpractice cases, as well as products liability, worker’s compensation, workplace safety, and wrongful termination and employment discrimination cases. Access our e-brochure or visit our webpage for more information on our legal nurse consulting services.  Contact us to learn more


Blog by Shelly Maffia, MSN, MBA, RN, LNHA, QCP, CHC, CLNC, Proactive Medical Review

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